Hansard debates

Natalie HUTCHINS (Sydenham – Minister for Jobs and Industry, Minister for Treaty and First Peoples, Minister for Women) (10:57): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Inquiries Amendment (Yoorrook Justice Commission Records and Other Matters) Bill 2024:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Inquiries Amendment (Yoorrook Justice Commission Records and Other Matters) Bill 2024 (Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill empowers the Yoorrook Justice Commission (Commission) to make the following types of Yoorrook Justice Commission record orders (record orders) over records of First Peoples’ evidence provided to the Commission:

1. A Yoorrook Justice Commission record closure order (closure order) to prevent public inspection of the record for 99 years once the Commission is wound down (clause 4, new section 52B).

2. A Yoorrook Justice Commission record restriction order (restriction order) to make the record available for limited public inspection on the terms and conditions specified by the Commission for 99 years once the Commission is wound down (clause 4, new section 52C).

A record order will also have the effect of making the relevant record exempt from the Freedom of Information Act 1982 (FOI Act) (clause 6) for 99 years. As such, a person will not be able to gain access to a record which is subject to a record order via a Freedom of Information request.

The Bill enables the Commission to protect the confidentiality of First Peoples’ evidence in line with Indigenous Data Sovereignty (IDS) principles.

IDS is an international movement which promotes the rights of Indigenous Peoples to own, control, access and possess data that derive from them, or which pertain to their members, knowledge systems, customs, resources or territories.

The Bill also makes technical amendments to the Inquiries Act 2014 (Inquiries Act) to clarify how records produced by Royal Commissions, Boards of Inquiry and Formal Reviews should be treated after those inquiries are wound down.

Human rights issues

Human rights protected by the Charter that are relevant to the Bill

1. The amendments contained in the Bill to clarify how records produced by Royal Commissions, Boards of Inquiry and Formal Reviews should be treated after those inquiries are wound down do not engage any Charter rights as they are minor and technical in nature.

2. The reforms in the Bill which empower the Commission to issue record orders engage the following Charter rights.

Recognition and equality before the law

Section 8(2) of the Charter provides that every person has a right to enjoy their human rights without discrimination.

Section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination.

Discrimination, for the purpose of section 8 of the Charter means discrimination within the meaning of the Equal Opportunity Act 2010 (Equal Opportunity Act), on the basis of one or more attributes set out in section ‍6 of that Act. The relevant attribute engaged by the Bill is discrimination on the basis of race.

The Commission will be empowered to make a record order over First Peoples’ evidence (see clause 4, new sections 52B and 52C). This means that First Peoples’ records may be afforded greater protections from public access than records provided by non-First Peoples. As such, the Bill permits differential treatment for First Peoples and non-First Peoples.

Under section 8(4) of the Charter, measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination. These measures are named in the Charter’s Explanatory Memorandum as ‘special measures’.

Section 12(1) of the Equal Opportunity Act provides that a person may take a special measure for the purpose of promoting or realising substantive equality for members of a group with a particular attribute. Conduct which constitutes a special measure under the Equal Opportunity Act is not considered discrimination under that Act.

Equally, when s 8(4) is of the Charter is satisfied, there is no incompatibility with the right to recognition and equality before the law, because there is no discrimination under the Charter.

I consider the Commission’s power to issue record orders to be a special measure as per section 8(4) of the Charter for the following reasons:

• First Peoples are a historically disadvantaged group in Victorian society due to discrimination.

• The intention of the measure is to advance the rights of First Peoples by promoting IDS by giving First Peoples’ control over access to and use of their data.

• The measure is reasonably likely to advance the rights of First Peoples by ensuring that the Commission can protect the confidentiality of, and restrict access to and secondary use of, First Peoples’ evidence provided to the Commission.

• The reforms address a clear need as there is no guarantee under the current legislative framework governing the treatment of Royal Commission records that records of First Peoples’ evidence will be kept confidential once the Commission is wound down.

• The reforms are proportionate to their objective as the Commission’s power may only be used over records provided by First Peoples who are natural persons. As such, reports produced by the Commission and testimony from government ministers and representatives will still be available for public access.

I am satisfied that the record order reforms contained in the Bill are a special measure under section 8(4) of the Charter. As such, the Bill is consistent with the right of recognition and equality before the law.

Freedom of expression

Section 15(2) of the Charter provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds.

The right to freedom of expression includes a positive right to access information held by the government. The Bill engages the right to freedom of expression by enabling the Commission to issue record orders to prevent or restrict public access to government records, including preventing freedom of information requests (clause 6).

Section 15(3)(a) of the Charter provides that the right to freedom of expression may be subject to lawful restrictions which are reasonably necessary to respect the rights and reputation of other persons.

The Commission’s power to restrict access to public information is lawful as it is precisely and appropriately prescribed in the Bill.

These lawful restrictions are reasonably necessary to respect the rights and reputations of other persons as:

• They enable the Commission to protect the confidentiality of First Peoples’ evidence and uphold First Peoples’ stated preferences as to how their record should be treated once the Commission is wound down.

• Record orders can only be made over records provided by natural persons who are First Peoples (see clause 4 new section 52A). This ensures that other significant documents including reports produced by the Commission and evidence provided by government ministers and organisations will remain publicly accessible. This balanced approach ensures the protection of First Peoples confidential information while still enabling the Commission to establish an official record of the impact of colonisation on First Peoples in Victoria, as per its Letters Patent.

As such, I consider that to the extent that there is a limitation on the right to freedom of expression, the limitation is reasonably necessary to respect the rights and reputation of other persons.

Privacy and reputation (section 13 of the Charter)

Section 13 of the Charter states that a person has the right –

a) not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

b) not to have their reputation unlawfully attacked.

Under the current legislative framework in the Inquiries Act, records of Royal Commissions which have concluded may be publicly accessible depending on:

• whether an order is made by the Minister for Government Services or the Keeper of Public Records under the Public Records Act 1973 to prevent public inspection of the relevant record; or

• whether an FOI decision maker within government determines that the record is an exempt document under Part IV of the FOI Act.

The Bill enhances the right to privacy by empowering the Commission to make orders which ensure that First Peoples’ records are prevented or restricted from public access, thereby preventing arbitrary disclosure and use of First Peoples’ private and sensitive personal information. The Commission will make these orders on the basis of consultation with First Peoples who have provided the relevant evidence to the Commission.

This approach aligns with IDS principles by providing First Peoples with agency regarding the control and access of their records, rather than leaving the confidentiality of records to the discretion of government. Such protections are especially important where First Peoples stories involve traumatic experiences of discrimination or abuse.

Conclusion

Having considered all relevant factors and for the reasons outlined above, I am satisfied that the Bill is compatible with the Charter.

Hon Natalie Hutchins MP

Minister for Jobs and Industry

Minister for Treaty and First Peoples

Minister for Women